USvKeonnaThomasMotion (PDF)

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Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 1 of 16








a/k/a 'Fatayat Al Khilafah,"









, 2016, upon

consideration of the Defendant's Motion for Notice and Discovery of surveillance Used in the
Govemment's Investigation ofthe Defendant and the govemment's response thereto, it is hereby

ORDERED AND DECREED that the motion is DENIED.


.ludge, United States District Court

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 2 of 16





a/k/a "Fatayat Al Khilafah,"
a/k/a *Younglioness"
The United States of America, by its counsel Zane David Memeger, the United
States Attomey for the Eastem

District of Pennsylvania, Jennifer Arbittier Williams, Assistant

united states Attomey for that district, and paul casey, Trial Attomey for the Department of
Justice, counterterrorism Section, hereby files its Response in opposition to Defendant's Motion

for Notice and Discovery of Surveillance Used in the Govemment's Investigation of the



April 23,2015,


grandjury sitting in the Eastem District ofpennsylvania

retumed an indictment charging defendant Keonna Thomas with attempting to provide material
support and resources, "including THoMAS herself as personnel. to a foreign terrorist
organization, to wit: the Islamic state of Iraq and the Levant" (ISIL), in violation of lg U.S.c.

23398. since that time, the govemment

has provided the defense

with complete discovery,

including all grandjury testimony and exhibits, documents subpoenaed from third-parties, search
warrant affidavits and retums ofthe defendant's social media and email accounts, home, and hard
drives, photographs taken during execution ofthe search warrant at her home, and an audio

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 3 of 16

recording of the defendant attempting to purchase a quick flight out ofthe country (after the
govemment seized her hard drives).

In addition to producing voluminous unclassified discovery in this case, the
govemment filed an ex parle, sealed, classified motion for a protective order pursuant to Section 4

of the classified Information Procedures Act (CIPA). Section 4 of cIpA authorizes a court
"upon a suflicient showing" to deny or otherwise restrict discovery by the defendant ofclassified
documents and information belonging to the United States.r

lg U.S.C. App. III

g 4; see


united states v. Rezaq, 134 F.3d 1121,1142 (D.c. cir. l99g); United States v. yunis,g67 F.2d
617,621-25 (D.c.

cir. 1989) In this case, upon consideration of the govemment's classified

GIPA motion, the court signed the protective


This portion of the court,s file remains

classified and under seal.

Meanwhile, on April l,20r6 (which was the deadrine for alr discovery motions in
this case), the defendant filed a Motion for a Bill of Particulars seeking additional information
about the govemment's evidence and its theory

ofprosecution. The government opposed the

defendant's motion, in large part because the govemment had already produced voluminous and

orgarized discovery which had directed the defendant's attention to the goveflrment's key
Section 4 provides, in pertinent part, that a district court;
upon a sufficient showing may authorize the United States to delete specified
items of classified information from documenrs to be made available io the
defendant through discovery under the Federal Rules of Criminal procedure, to
substitute a summary of the information for such classified documents, or to
substitute a statement admitting relevant facts that the classified information
would tend to prove. The Court may permit the United States to make a request
for such authorization in the form ofa written statement to be inspected by the
court alone.

l8 U.S.C. App. III g 4.

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 4 of 16

evidence. The court denied this motion in its entiety.
Thereafter. on April 19,2016 (over two weeks after the discovery motion
deadline), the defense sent a letter to the govemment requesting "notice and supplemental
discovery ofany surveillance techniques or searches that contributed to the government's
investigation ofthe defendant, including but not limited to" more than a dozen categories


surveillance techniques that exist under the law and today's technology, ranging from classified
surveillance pursuant to the Foreign Intelligence Surveillance Act (FISA), to GpS{racking

devices. In this letter, the defense claimed the govemment "has an obligation to provide notice
and discovery conceming the surveillance it employed because, without that information, Ms.

Thomas is unable to challenge the legality of the surveillance and the admissibility ofevidence
derived or obtained therefiom." on May 5,2016, the govemment responded with a lengthy letter
explaining that Thomas was not


under any statute, rule, orjudicial opinion


entitled to the

information she requested because: (a) a defendant has no right to receive notice about the fact
that the govemment chose to utilize a particular surveillance technique. when the govemment is
not using (and thus a defendant may not seek to suppress) any evidence obtained from said
surveillance technique: (b) when it comes to classified surveillance techniques, federal statutes

strictly limit a defendant's right to notice and discovery thereof; and (c) the govemment has fully
complied with all criminal discovery rules and requirements. Def. Exhibit F.
On June 28.2016, nearly two months after the aforementioned exchange


correspondence (and almost three months past the deadline for discovery motions), the defense

filed a Motion for Notice and Discovery of Surveillance Used in the Govemment's Investigation
of the Defendant. In this motion, Thomas again seeks "to compel the govemment to provide

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 5 of 16

notice and discovery of surveillance it used to monitor Ms. Thomas's communications and

activities, so that the defense has an adequate opportunity to challenge the lawfulness ofthe
surveillance actually used in this case." Def. Mem. at


For the reasons set forth in the

govemment's original letter response as well as below, this motion is without merit and should be


Thomas argues that she is entitled to notice and discovery of all surveillance

techniques used by the govenment in this investigation, both classified and unclassified, so that
she may challenge their

lawfulness. Def. Mem. at,3. However, the defendant,s argument

entirely misunderstands the govemment's discovery obligation in criminal cases. As explained
below, notice and discovery about the govemment's surveillance techniques is not required under
the Federal Rules of criminal Procedure. See Fed. R. crim. p. 16 (limiting govemment's
discovery obligation to specific categories ofevidence). Nor do Brady or Gielio principles
because the govemment's decision to use a particular investigatory authority is neither material

guilt or punishment, nor exculpatory or impeaching. Brady v. Marvland, 373 u,s. g3 (1963);
Gielio v. United States, 405




The Jencks Act (requiring production of prior

witness statements) is also irrelevant.

In fact, the governrnent's decision to use


particular surveillance technique is only

discoverable ifevidence gathered pursuant to that technique is being used by the govemment and
therefore may be the subject of a defense suppression motion. As explained below, this is the
case whether the surveillance is unclassified, see

l8 U.S.c,

$ 3504 (notice regarding


evidence" may be required when defendant claims '1hat evidence is inadmissible"), or classified.

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 6 of 16

see FISA, 50 U.S.C.

$$ 1806, 1825,

1845(c) (notice required only when govemment inrends to

enter into evidence or otherwise use or disclose evidence gathered pursuant to FISA).

In this case, all unclassified search warrants which Thomas has standing to suppress
have already been produced, and therefore 18


$ 3504 is

satisfied. And the govemment


not and will not be using any evidence gathered pursuant to classified techniques, so Thomas's
request for notice and discovery of classified surveillance techniques is

moot. Therefore,

Thomas's motion is entirely without merit and should be denied.

Contrary to defendant's argument, there is no overarching govemmental obligation


a defendant

ofall investigative

techniques utilized in an

investigation. Rather, discovery

in criminal cases is limited to those categories outlined in Federal Rule of Criminal procedure 16,

"with some additional material being discoverable in accordance with statutory pronouncements
and the due process clause of the

constitution." United

1994). Generally. these other areas

Gielio. Id.

States v. Ramos,27

F.3d65,6g (3d cir.

are limited to the Jencks Act and materials pursuant to Brady

Further, Federal Rule of Criminal procedure 12(bX4XB) (,.Notice of the

Govemment's Intent to Use Evidence"), which addresses pre-suppression discovery requests like
this, expressly limits pre-suppression discovery to those categories outlined in Rule


See Rule

l2(bX4XB) ("defendant may, in order to have an opporhmity to move to suppress evidence . . .
request notice of the govemment's intent to use (in its evidence-in-chiefat trial) any evidence
the defendant may be entitled to discover under rule 16,,).

Further, courts have long espoused the principal that it is the government's

obligation to determine whether information in its possession, custody, or control is subject to

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 7 of 16


See. e.s.. United States v. Campa, 529 F.3d 980, 996




Cir. 2008) ("Ordinarily, the

govemment alone determines whether material in its possession must be turned over to a

defendant."). Thus.

a defendant may not compel

information merely to ensure the govemment is

complying with its legal and ethical discovery obligations. See. e.s.. united states v. River4 l9g
F.R.D. 48 (W.D.N.Y. 1999) (denying defendant's request for inspection of pen register, where
defendant provides no reason to believe the device may have contravened his constitutional or

statutory rights). Nor does a defendant have any "constitutional right to conduct
[her] own search

of the govemment's files to argue relevance." pennsvlvania v. futchie,4g0 u.s. 39, 59 (19g7).
Defendant nonetheless argues that complete notice and discovery is required in this
case because this investigation

likely involved suneptitious surveillance, and courts routinely

require notice and discovery when surveillance is surreptitious (such as with wiretaps and

entries). Def. Mem. at 26-28. However, none of the

case examples cited by

Thomas addresses classified surveillance techniques, and this is a critical distinction for two

reasons. First, when it comes to classified information. there is a compel ling
against disclosure. See

need to protect


CIA v. Sims, 471 U.S. 159, 175 (1985) (citing the govemment,s

"compelling interest in protecting both the secrecy of information important to our national
security and the appearance of confidentiality so essential 1o the effective operation ofour

foreign intelligence service') (quoting Snepp v. united States,444 u.s. 507, 509 n.3 (1980) (per
curiam)); 499prc! Chicaeo & Southern Air Lines. lnc. v. Waterman S.S. Com., 333 U.S. 103,


(19a8) ("The [executive branch] has available intelligence services whose reports are not and
ought not to be published to the



Accordingly, federal courts have long recognized that

is not in the national interest for revelation of either the existence or the product of

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 8 of 16

intelligence operations and information] to extend beyond the narrowest limits compatible with
the assurance that no injustice is done to the criminal

defendant." United

States v. Lemonakis.

485 F.2d,941,963 (D.C. Cir. 1973).
Second, unlike with the unclassified surveillance examples provided in Thomas's

motion, Congress has enacted very clear statutory criteria for the government's notice obligations
regarding classified investigative techniques. And, as set forth below, none ofthe notice
obligations apply in this case:


FISA Surveillance: When FISA surveillance is used, federal statute
explicitly states that rhe govemment's notice obligations apply only if the


) intends to enter into evidence or otherwise use or disclose

(2) against an aggrieved person (3) in a trial, hearing or other proceeding (4)
any information obtained or derived from (5)


50 U.S.C.

g$ lg06

(electronic surveillance), 1825 (physical search), 1845(c) (pen register or
trap and trace). If the statutory criteria for notice identified above were
satisfied in this case, the United States would have provided notice to the
defendant and the Court that the United States intended to use against the
defendant information obtained or derived from

FISA. No such notice has

been provided to the defendant or Court because the statutory requirements

have not been satisfied.


Surveillance Under Executive Order 12333: Thomas claims she is entitled
to notice of any classified surveillance conducted under Executive Order
12333, but this Executive Order creates no new notice or discovery

Case 2:15-cr-00171-MMB Document 74 Filed 07/29/16 Page 9 of 16

procedures outside of

FISA. United


v. Marzook. 435 F. Supp.2d

778 (N.D. Ill. 2006) (FISA now govems the process for obtaining

intelligence searches); United Presbyterian Church v. Reaean. 557 F. Supp.

6l (D.D.C.

1982) (denying request for "production of all documents which

described the manner in which the Federal Bureau of Investigation and the

Central Intelligence Agency would carry out their responsibilities under
Executive Order 12333. and all documents relating to which plaintiffs had
been or would be'targeted' and what information on them had been

developed. Such

a request is a

'fishing expedition, of the most obvious

kind . . . ."). Thus, the procedures laid out in FISA, created by Congress
and set forth in clear statutory language discussed above, continue to


Securitv Letters
and discovery

fNSLs): Thomas also

argues that she is entitled to notice

ofany collection of third-party business records pursuant to

either Section 215 of the Patriot Act (which amended portions ofFISA), or
through the use ofNational Security Lefters

(NSLs). Both


provide the govemment with an ability, in national security investigations,
to obtain third-party business records in a way similar to grandjury
subpoenas. And just like with grand jury subpoenas, there is gq
requirement to provide a defendant with notice or discovery ofthe process

used. United

States v.

Miller,425 U.S. 435,444 (1976) (the,.issuance of a

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